On January 30, 1997, Examiner Dennis P. McGilligan issued Findings of Fact,
Conclusions
of Law and Order in the above matter wherein he concluded that Respondent Milwaukee
District
Council 48, Local 1055 had met its obligation to fairly represent Complainant and thus had
not
violated Sec. 111.70(3)(b)1, Stats. Given this conclusion, the Examiner further determined
that he
should not exercise jurisdiction to determine whether Respondent Milwaukee County had
violated
a collective bargaining agreement and thereby committed prohibited practices within the
meaning
of Secs. 111.70(3)(a)5, Stats. He therefore dismissed the complaint.

On February 19, 1997, Complainant filed a petition with the Wisconsin Employment
Relations Commission seeking review of the Examiner's decision pursuant to Secs. 111.07(5)
and
111.70(4)(a), Stats. The parties thereafter filed written argument, the last of which was
received
April 8, 1997.

No. 28754-C

Page 2

No. 28754-C

Having considered the matter and being fully advised in the premises, the
Commission
makes and issues the following

ORDER

The Examiner's Findings of Fact, Conclusions of Law and Order are affirmed.

Given under our hands and seal at the City of Madison, Wisconsin this 22nd day of
January, 1998.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

James R. Meier, Chairperson

A. Henry Hempe, Commissioner

Paul A. Hahn, Commissioner

Page 3

No. 28754-C

MILWAUKEE COUNTY

MEMORANDUM
ACCOMPANYING

ORDER AFFIRMING EXAMINER'S FINDINGS OF
FACT,

CONCLUSIONS OF LAW AND
ORDER

The Examiner's Decision

In his decision, the Examiner reasoned as follows:

The primary issue presented herein is whether the Union
violated its duty to fairly represent
Complainant. The duty of fair representation obligates a Union to represent the interests of
its
members without hostility or discrimination, to exercise its discretion with good faith and
honesty,
and to eschew arbitrary conduct. 2/ The Union's duty to fairly represent its members is only
breached
when the Union's actions are arbitrary, discriminatory, or taken in bad faith. 3/

The thrust of Complainants' case is that
the Association violated the duty of fair
representation when it failed to process his grievance to arbitration. However, Gerty Purifoy,
Staff
Representative for the Union, testified that Complainant's case would not have been one of
the cases
taken to arbitration because it had already been resolved at Step 2. 4/ Purifoy also testified
that in
making decisions about which cases would advance to arbitration, that the Union had to
balance the
needs of the entire Union membership and not just those of the individual. 5/ Purifoy added
that part
of this balancing act includes consideration of the relative merits of an individual's case
versus those
of other grievants who might appear before the Grievance Committee. 6/ Even the
Complainant
admitted that he had no knowledge of the other grievances that the Grievance Committee
might be
considering, and that it was possible that his grievance might not have ranked that high in
this
prioritization process. 7/

The Complainant argues, contrary to the
above, that he did not agree to settle the grievance,
and that he informed the Union of this on a timely basis so that the Union should have
been aware
of same when it signed off on the

settlement at Step 3 of the grievance procedure. Assuming
arguendo that the Complainant never
agreed to settle the grievance, and that he informed his Union Steward within 48 hours of his
receipt
of the Grievance Disposition Form of his rejection of the proposed settlement contained
therein, the
Complainant's case still must fail. In this regard, the Examiner notes that Union Staff
Representative
Gerty Purifoy informed the County at the third step meeting, and within one day of the
issuance of
the aforesaid Grievance Disposition Form, of the settlement of Complainant's grievance
acting in
reliance on information that she had that the grievance had been settled. The Complainant's
grievance was then settled at the third step. As noted previously, the Union had moved the
grievance
to the third step in order to comply with grievance procedure time lines. Although there is a
gap of
about two weeks from the date of issuance of the Grievance Disposition Form containing the
proposed grievance settlement to the date of the third step written sign-off wherein at least
Union
Steward Colla failed to inform Purifoy that the Complainant had changed his mind and/or
never
agreed to the proposed settlement which is unexplained, the Complainant offered no
persuasive
evidence that said failure was arbitrary, discriminatory or done in bad faith. The County
argues that
the only real claim articulated by the Complainant which might be relevant herein "was his
opinion
that the union was somehow negligent." However, as pointed out by the County, "negligence
is not
one of the Mahnke factors."

Complainant asserts that he should have
gotten a lot more back pay than a colleague and
because he didn't the Union acted improperly. However, as pointed out by the County the
Court of
Appeals recently stated citing Humphrey vs. Moore, 375 U.S. 335 (1964):

Inevitably differences arise in the manner
and degree to which the terms of any negotiated
agreement affect individual employees and classes of employees. The mere existence of such
differences does not make them invalid. The complete satisfaction of all who are represented
is
hardly to be expected. A wide range of reasonableness must be allowed a statutory
bargaining
representative in serving the unit it represents, subject always to complete good faith and
honesty or
purpose in the exercise of its discretion. Gray v. Marinette County, et al., 200
Wis.2d 426 (1996).

Here, the Complainant offered no
persuasive evidence that the Union handled his grievance any
different than it would any other grievant similarly situated, or that its recommendation to
accept the
proposed settlement, or any other action with respect to said settlement was arbitrary,
discriminatory
or in bad faith.

Complainant also complains that when he
appealed to the Union to process his grievance to
arbitration after the Step 3 resolution of same the Union acted improperly in refusing to
arbitrate his
dispute. However, the record indicates that various Union representatives and staff persons
went out
of their way to provide the Complainant with advice, counsel and representation including
several
meetings with the Union Grievance Committee, one of which the Complainant simply did not
show
up for. The Union responded to Complainant's continuing concerns in a responsive
manner above
and beyond that normally accorded

Page 5

No. 28754-C

bargaining unit employes in the grievance process. Beyond the
fact that the Union settled the
dispute with the County at the third step based on the assumption the Complainant had
agreed to
settle his grievance, the Examiner finds it reasonable to conclude that the record is clear the
Complainant and Union simply disagreed over the relative merits of his grievance.

Finally, the Complainant argues that the
fact the Union has limited resources and/or can only
take two grievances to arbitration each month is no defense for its failure to take his
grievance to
arbitration. However, as noted above, the Complainant offered no persuasive evidence or
testimony
that the Union's actions were arbitrary, discriminatory or in bad faith. In addition, the
record is clear
that the Union and the County have an agreement limiting the number of arbitration dates per
year
8/ and that the Union has an objective process for deciding which cases proceed to
arbitration. 9/ As
noted above, there is no persuasive evidence that the grievant's case is one that the Union
would have
decided to take to arbitration even if it had not been resolved at an earlier step of the
grievance
procedure. 10/

It is true that one Union official, Bernie
Freckmann, at one point long after the grievance had
been settled, refused to take to the Complainant any more over what he perceived was a
"threat" to
take the matter to the WERC if the grievance was not settled to the Complainant's
satisfaction. 11/
However, Freckmann also helped the Complainant to get a hearing before the Union
Grievance
Committee to state his case earlier in the process, 12/ and along with other Union
representatives did
his best to try to explain to the Complainant back-to-back pay and what he felt the
Complainant was
entitled to. 13/ In addition, the record indicates that neither the Union nor any of its
decision-makers
or agents including Freckmann bore any hostility or discriminatory motive against
Complainant at any
time material herein. In fact, the Union provided Complainant with more representation than
it gave
other grievants similarly situated.

Based on all of the foregoing, and the
record as a whole, the Examiner finds it reasonable to
conclude that the Union's actions toward Complainant herein were not arbitrary,
discriminatory or
taken in bad faith. Having concluded that the Union did not breach its duty of fair
representation
toward the

8/ Tr. 101-102.

9/ Tr. 102-103.

10/ See Tr. 62-64 and 115-116.

11/ Tr. 31.

12/ Tr. 119.

13/ Tr. 120.

Page 6

No, 28754-C

Complainant, the Examiner has no authority to consider any
breach of contract claims against
the County. 14/

Complainant's Motions

Likewise, the Examiner denies the Complainant's Motion to
Reopen the Record and to
Amend the Complaint for the reasons discussed below.

The Examiner first notes that the
Complainant's request to reopen the evidentiary hearing and
to amend his complaint in order to recover back-to-back pay (although he admits that he
received
back-to-back pay after bringing the matter to the attention of the County) was the subject of
his
original complaint. The Complainant also wants to hold both the Union and the County
"accountable"
for their actions relating to same.

Wis. Adm. Code Section ERC 10.19
provides that a "hearing may be reopened on good cause
shown." The standards for reopening a hearing are set forth in School District of
Marinette, Dec. No.
19542-A (Crowley, 5/83), and require the movant to show:

(a)That the evidence is newly discovered
after the hearing, (b) that there was no negligence in
seeking to discover such evidence, (c) that the newly discovered evidence is material to that
issue,
(d) that the newly discovered evidence is not cumulative, (e) that it is reasonably possible
that the
newly discovered evidence will affect the disposition of the proceeding and (f) that the newly
discovered evidence is not being introduced solely for the purpose of impeaching witnesses.

After considering the Complainant's Motion in light of the
above standards, the Examiner
denies the Motion because the newly discovered evidence is not material to the instant
dispute and
because it is not reasonably possible that this evidence will affect the outcome of this
proceeding.
The Examiner reaches these conclusions for the following reasons. One, while there are
similarities
between Complainant's original complaint and his new claims (both concern back-to-back
pay) there
are significant differences between same. For example, Complainant originally complained
that he
was denied the proper amount of back-to-back pay, and that the Union failed to properly
represent
him and failed to process his grievance over same to arbitration. In his new claim,
Complainant
admits that he was eventually paid at least some of the back-to-back pay owed him after his
complaints on the matter, but still wants to file a grievance "to put in place consequences for
the
tactics being used by the payroll department for changing time sheets without notification to
employees which has caused pay shortages, because unless the employee would catch this
shortage
it might never be paid." The Examiner is not persuaded that the basic facts or causes of
action are
the same in the Complainant's different claims. Thus, while the Complainant

14/ Mahnke v.
WERC, 66 Wis.2d 524 (1975) at 532.

Page 7

No. 28754-C

obviously contends otherwise in
complaining anew about the County's behavior toward him, the
Examiner finds that the disputes are separate and distinct, and conduct related to one dispute
is not
necessarily applicable to the other.

The Complainant also complains that the
Union continues to misrepresent him this time by
failing to file a first step grievance on his behalf over his latest claims against the County.
However,
the Examiner has already found that the Complainant did not prove that the Union violated
its duty
of fair representation with respect to his initial grievance/complaint over back-to-back pay.
By
agreement of the parties, the scope of the initial hearing was limited to said issue. There is
no
indication that the Complainant has made every effort to exhaust the contractual grievance
arbitration
procedures and/or the Union's internal appeal process with respect to his new claims before
coming
to the Commission with his claims. Nor is there any persuasive evidence that the
Complainant
initiated a grievance on his own over the County's actions which is his right under the
parties'
contractual grievance arbitration procedure. 15/ Based on same, and absent any persuasive
evidence
that the Union's actions relating to Complainant's new claims violated its duty to fairly
represent him,
the Examiner finds that the information for which the Complainant requests to reopen the
hearing is
not the kind of evidence which will affect the outcome of this proceeding.

The Complainant also requests to amend
his complaint to include allegations relating to the
new evidence.

Section 111.07(2)(a), Stats., provides in
pertinent part:

. . . any such complaint may be amended in
the discretion of the Commission at any time prior
to the issuance of a final order based thereon.

ERC 22.02(5)(a) provides:

(1)AMENDMENT. (a) Who may
amend. Any complainant may amend the complaint upon
motion, prior to the hearing by the commission; during the hearing by the commission if it is
conducting the hearing; or by the commission member or examiner authorized by the
commission to
conduct the hearing; and at any time prior to the issuance of an order based thereon by the
commission, or commission member or examiner authorized to issue and make findings and
orders.

Given the foregoing statutory provision and administrative
rule,
it is clear that the right to
amend is very broad and explicitly encompasses post-hearing amendments (i.e., prior to
issuance of
a final order). And, although there is no "relatedness" test by which an amendment should
be judged,
it has been held that amendments can be denied where the requested amendment is
unsupported by
any

15/ See Finding of Fact 5.

Page 8

No. 28754-C

rationale and requires waiver by Respondent of further hearing
16/ or where the amendment
constitutes an abuse of process 17/ or prejudices Respondent. 18/ Here, for whatever reason,
the
Complainant waited until the very end of the briefing period to file his request to amend his
complaint. In balancing the Complainant's right to amend with Respondent's right to a
timely
decision, 19/ the Examiner finds that due to the lateness of the Complainant's filing of his
request to
amend (after all rebuttal briefs, except Complainant's had been field with respect to the
original
complaint) it would be an abuse of the process to permit same. Therefore, I have denied the
Motion
to Amend the Complaint as well.

On review, Complainant asks that we reverse both the
Examiner's dismissal of the complaint
and his denial of Complainant's motion to reopen the record and amend the complaint. We
have
reviewed the record and find that it fully supports the Examiner's dismissal of the complaint
and
denial of Complainant's motion to reopen/amend. Thus, we affirm in all respects.